Sutton & Barclay - [2025] FedCFamC2F 575

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sutton & Barclay [2025] FedCFamC2F 575

File number(s): CAC 80 of 2024

Judgment of: JUDGE NEWBRUN

Date of judgment: 7 May 2025

Catchwords: FAMILY LAW – PARENTING – Best interests of child – orders made.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Banks & Banks (2015) FLC 93-637

Jollie & Dysart [2014] FamCAFC 149

Tibb v Sheean (2018) 58 Fam LR 351

Division: Division 2 Family Law

Number of paragraphs: 160

Date of hearing: 1-3 April 2025

Place: Parramatta

Counsel for the Applicant: Mr Gabrial

Solicitor for the Applicant: Mannion Lawyers

Counsel for the Respondent: Mr Schroder

Solicitor for the Respondent: Mark Brown & Associates

Counsel for the Independent Children's Lawyer: Mr Ladopoulos

Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd
ORDERS

CAC 80 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SUTTON

Applicant

AND:
MS BARCLAY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

7 MAY 2025

ON A FINAL BASIS THE COURT ORDERS THAT:
1.The mother shall have sole decision-making responsibility for major long-term issues relating to care and welfare of X born in 2018 (“the child”).
2.The mother shall:
(a)notify the father of any proposed decision about a major long-term care issue in relation to the child and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b)take into consideration any views expressed by the father about the proposed decision; and
(c)notify the father of her final decision, such notification to be given in writing within 14 days of the final decision being made.

Live with
3.The child shall live with the mother.

Spend time with
4.Unless otherwise agreed between the mother and the father in writing, the child shall spend time with the father as follows:
(a)commencing on the second Sunday following the date of these Orders, for a period of three calendar months, each alternate Sunday from 10:00am until 1:00pm;
(b)thereafter, for a further period of three calendar months, each alternate Sunday from 10:00am until 4:00pm;
(c)changeover on each occasion during the above six-month period shall occur adjacent to the entrance to B Venue and the time shall be spent at a park, play centre or shopping centre nominated by the father in the Suburb D area.
(d)thereafter, until the end of Term 1 in 2026, each alternate Sunday from 10:00am until 4:00pm;
(e)commencing on the first Saturday following the last school day of Term 1 in 2026, each alternate weekend from 10:00 am on Saturday until 4:00 pm on Sunday;
(f)commencing on the first Friday following the last school day of Term 4 in 2026 and until the commencement of Term 1 in 2027 school, each alternate weekend from 10:00 am on Friday until 4:00 pm on Sunday;
(g)changeover for the times provided for in subparagraphs (d), (e) and (f) above shall occur at C Service Station at Town E;
(h)from the commencement of the 2027 school year, during school Terms, the child shall spend time with the father each alternate weekend from after school Friday (or 3:00pm if the Friday is not a school day) until 4:00 pm on Sunday;

School holiday periods
(i)during school the school holiday periods at the end of Terms 1, 2 and 3 in 2027, the child shall spend time with the father from 10:00 am on the first Saturday of the school holiday period until 4:00 pm on the following Wednesday;
(j)during school the school holiday period at the end of Term 4 in 2027, the child shall spend time with the father:
(i)from 10:00 am on 26 December 2027 until 4:00pm on 30 December 2027;
(ii)from 10:00 am on 20 January 2028 until 4:00pm on 25 January 2028;

(k)from the commencement of the 2028 school year:
(i)during school the school holiday periods at the end of Terms 1, 2 and 3 each year, the child shall spend time with the father from 10:00 am on the first Saturday of the school holiday period until 4:00 pm on the following Saturday; and
(ii)during school the school holiday periods at the end of Term 4 each year, the child shall spend time with the father as follows:
A.in even numbered years, from 4:00 pm on 6 January until 4:00 pm on 25 January; and
B.in odd numbered years, from 4:00 pm on 24 December until 4:00 pm on 6 January;

Father’s Days
(l)notwithstanding subparagraphs (a) to (k) above, if Father’s Day falls on a weekend that the child is not already spending time with the father, the child shall spend time with the father on the Father’s Day weekend as follows:
(i)in 2025, from 10:00 am until 4:00 pm on Father’s Day;
(ii)in 2026 and thereafter, from 4:00 pm on the Saturday until 4:00 pm on Father’s Day;

Mother’s Days
(m)notwithstanding subparagraphs (a) to (l) above, if Mother’s Day fall on a weekend that the child is to be spending time with the father, the child’s time with the father on that weekend will be suspended from 4:00 pm on the Saturday until 4:00 pm on Mother’s Day and the child shall be returned to the mother’s care for those times;
(n)changeover for the times provided for in subparagraphs (j), (k), (l) and (m) above shall occur:
(i)at the child’s school if it is a school day; and
(ii)at C Service Station at Town E if it is not a school day;

Health
5.The mother shall:
(a)inform the father in writing as soon as practicable of:
(i)any specialist medical appointments including appointments with any orthodontist, periodontist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to the child;
(ii)the reason for such appointment having been made; and
(iii)the name and contact details of the specialist medical consultant with whom the appointment has been made;

(b)ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the mother’s receipt of the report; and
(c)ensure that the father is notified as practicable if:
(i)the child is admitted to hospital, together with the details of the hospital and the reason for the admission;
(ii)the child is involved in a medical emergency, together with the nature of the emergency and current location of the child;
(iii)the child will be required to take medication when she spends time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the child is to spend with the father.

6.The father shall ensure that the mother is notified as practicable if, while in his care:
(a)the child is admitted to hospital, together with the details of the hospital and the reason for the admission;
(b)the child is involved in a medical emergency, together with the nature of the emergency and current location of the child; and
(c)the child will be required to take medication when she returns to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following child’s return to the mother’s care.

7.THESE ORDERS AUTHORISE the child’s specialist medical consultant(s) to discuss the child’s medical conditions with both the mother and the father, separately or, if the mother and the father so choose, together.

Education
8.THESE ORDERS AUTHORISE any school which the child is attending from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother or the father in relation to the child.
9.Both the mother and the father are permitted to order and obtain school photos of the child, each at their own expense.
10.Both the mother and the father are permitted to attend:
(a)any school event relating to the child to which parents are ordinarily invited however they are to make separate appointments for parent/teacher interviews; and
(b)any of the child’s extracurricular activities to which parents are ordinarily invited.

Contact details
11.The mother and the father shall notify each other of any change to their email address and/or telephone contact numbers, such notification to be made in writing and within three (3) days of such change.
12.The mother and the father shall notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.

Communication between the parents
13.Unless otherwise agreed in writing, the mother and the father shall communicate about matters relating to the care and welfare of the child using the following means:
(a)In cases of emergency, by telephone call or SMS text message;
(b)In all other cases, by use of the “Our Family Wizard” app.

14.Within 3 days of the date of these orders, the mother and the father shall do all things necessary to establish a subscription with the “Our Family Wizard” service and shall renew and maintain such subscription at all times.

Restraints and injunctions
15.The mother and the father shall:
(a)be restrained from:
(i)discussing these proceedings in the hearing of or presence of the child;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;

(b)take all reasonable steps to prevent any other person:
(i)discussing these proceedings in the hearing of or presence of the child;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.

16.The father is hereby restrained from consuming alcohol 48 hours prior to or during any time spent with the child.
17.The father shall:
(a)contact the rooms of Dr F and Dr G within 7 days of the date of these Orders and make appointments to attend upon each of them, at his expense and at the earliest available appointment time and for a second occasion in the first 3 months of 2026, for the purposes of further acquainting himself in relation to the medical needs of the child;
(b)follow all reasonable directions from Dr F and Dr G in relation to attending to those needs;
(c)notify the mother of:
(i)the date of his appointment with each doctor; and
(ii)the actual date of his attendance upon each of the doctors,

such notification to be in writing within 7 days of the appointments having been made and within 7 days of his attendance for the appointments.

18.The father shall pay the sum of $6,954 within three months in respect to his share of the ICL’s legal costs.

AND THE COURT NOTES THAT:
A.A requirement for notice to be given in writing shall be satisfied by notice given using the Our Family Wizard app.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This final hearing relates to the child X, born in 2018 (“the child”). The child is 6 years old.
Pursuant to interim orders made by consent on 1 July 2024, the child lives with the mother and spends supervised time with the father. Those Orders provided for supervised time to occur for a period of two hours per month for a period of three months, followed by two hours per fortnight for a further three months, after which the time would progress to unsupervised time for six hours each alternate Saturday.
At the time of the final hearing, unsupervised time pursuant to the interim orders had not yet commenced.
PROPOSALS
By the conclusion of the hearing, it was common ground that the child should live with the mother and that the mother should have sole parental responsibility for the child.
The father ultimately sought orders as set out in his further revised minute of order providing, inter alia, for a progression of unsupervised time commencing with four hours fortnightly for a period of three months, and culminating (after nine months of graduated build-up) in a fortnightly cycle of after school Friday to 4.00 pm Sunday in the first week and after school on Friday to 7.30 pm on the same day in the second week. The father sought a graduated build-up of school holiday time culminating in half school holidays from 2027 onwards.
The Independent Children’s Lawyer (“ICL”) also sought a graduated build-up of time, albeit in different terms to the father. The ICL proposed that unsupervised time commence with three hours fortnightly for a period of three months, with overnight time to commence at the end of Term 1 of 2026, and culminating in alternate weekends from the conclusion of school on Friday to 4.00 pm Sunday. The ICL sought a graduated build-up of school holiday time culminating in half school holidays from 2028 onwards.
The mother sought orders as set out in her Case outline filed 26 March 2025 that the child spend no time with the father. In the alternative, inter alia, the mother sought orders that the father spend supervised time with the child once per month in the Suburb D area through a private supervision agency.
MATERIAL RELIED UPON
The father relied upon:
(a)Case outline filed 28 March 2025;
(b)Amended Initiating Application filed 31 October 2024;
(c)His affidavit filed 19 March 2025;
(d)Affidavit of Ms H filed 17 March 2025;
(e)Affidavit of Ms K filed 17 March 2025;
(f)Child Impact Report of Ms L dated 18 June 2024;
(g)Family Report of Mr J dated 21 October 2024.
The mother relied upon:
(a)Case outline filed 26 March 2025;
(b)Amended Response to Initiating Application filed 24 June 2024;
(c)Her affidavit filed 21 February 2025;
(d)Affidavit of Mr M filed 21 February 2025;
(e)Affidavit of Ms N filed 21 February 2025;
(f)Affidavit of Ms O filed 21 February 2025.
The ICL relied upon:
(a)Case outline filed 27 March 2025;
(b)Child Impact Report of Ms L dated 18 June 2024;
(c)Family Report of Mr J dated 21 October 2024.
The following documents became exhibits:
(a)Exhibit A: Page 42 of the mother’s tender bundle;
(b)Exhibit B: Pages 18 to 20 of the mother’s tender bundle;
(c)Exhibit C: Pages 150 to 154 of the mother’s tender bundle;
(d)Exhibit D: Annexure C to the mother’s affidavit;
(e)Exhibit E: Pages 108 to 113 of the mother’s tender bundle;
(f)Exhibit F: Page 43 of the mother’s tender bundle;
(g)Exhibit G: Pages 11 to 13 of the mother’s tender bundle;
(h)Exhibit H: Pages 49 to 54 of the mother’s tender bundle;
(i)Exhibit I: Pages 21 to 24 of the mother’s tender bundle;
(j)Exhibit J: Pages 27 to 28 of the mother’s tender bundle;
(k)Exhibit K: Pages 40 to 41 of the mother’s tender bundle;
(l)Exhibit L: Page 184 of the mother’s tender bundle;
(m)Exhibit M: Pages 185 to 186 of the mother’s tender bundle;
(n)Exhibit N: Pages 157 to 164 of the mother’s tender bundle, school reports;
(o)Exhibit O: Annexures to the father’s affidavit filed 19 March 2025;
(p)Exhibit P: Annexure A to the affidavit of Ms H filed 17 March 2025;
(q)Exhibit Q: Pages 19 to 21 of the father’s tender bundle;
(r)Exhibit R: Page 189 of the mother’s tender bundle;
(s)Exhibit S: Pages 50 to 68 of ICL’s supplementary tender bundle, contact centre notes;
(t)Exhibit T: Page 166 of the mother’s tender bundle, letter from mother’s solicitor to the father’s solicitor;
(u)Exhibit U: Pages 69 to 157 of the ICL’s supplementary tender bundle;
(v)Exhibit V: Family Report dated 21 October 2024 and Child Impact Report dated 18 June 2024.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussion under section 60CC, the latter evidence shall take precedence.
Both parties gave oral evidence. Their demeanours were calm and unremarkable. They usually sought to give responsive answers to questions asked of them.
The father’s evidence
The Court does not propose to set out the entirety of the father’s affidavit and oral evidence.
The father admitted having been verbally violent towards the mother during their relationship.
He could not recall when he had been verbally violent to her. He could not recall the nature of his verbal violence towards the mother. He stated that it was possible that he was affected by alcohol when he was verbally violent towards the mother.
The father admitted having acted recklessly after having consumed alcohol.
When it was put to the father that alcohol and violence go together with him, the father merely responded that he did not know.
The father admitted that he was passed out in his car on a Sunday morning in mid-2017 having previously consumed significant alcohol, when the police broke the windows of his car to gain access to him. The father stated that he had left the bar, he had been drinking at about 12.30 am and the police had found him about 5.30 am. The father admitted that he had a problem with alcohol at this time.

The father could not recall in cross-examination the allegations made by the mother set out in paragraph 57 of her trial affidavit that in early 2018 she observed the father asleep in the lounge room smelling of alcohol and that his car was parked in the street a car width from the curb and in a dangerous position.
The father stated that he had personally rehabilitated himself regarding alcohol consumption having regard, inter alia, to his family and career responsibilities. He was happy to abide by the continuance of a restraining order regarding alcohol consumption.
The father admitted having kicked his car door after having become frustrated by an event in late 2016.
The father admitted in about early 2017 posting on Facebook a sexually explicit photograph of the mother, previously sent by the mother to him, without her permission. He deleted the Facebook entry after the mother had complained to him.
The father stated he had belatedly completed a medical condition management course. He stated what he had learnt from the course. He confirmed he had completed a Tuning into Kids course and elaborated what he had learnt from the course.
The father confirmed that his supervised time with the child was going well.
Evidence of Ms H
The Court does not propose to set out the entirety of Ms H’s affidavit and oral evidence.
In oral evidence, the witness stated that when she commenced living with the father he did not discuss his past relationship with the mother a great deal.
The witness stated that the father never discussed with her any past drinking problems that he thought he had previously. She stated that only one month ago the father had told her of an incident in mid-2017 where he was found slumped over the steering wheel of his car with a shirt over his head having been drinking.
The witness stated that she had downloaded a photo of the child in a dancing costume from a dance studio website (being a website open to the public) and posted it on her Facebook page. She stated she had not obtained permission to do this from the mother or the father.
The witness was asked when the father last had an alcoholic drink. She replied that the father went to Town Q in February 2025 and may have had a drink with his friends. A short time later she stated that the father had told her that he had had a drink in Town Q. The witness was asked how much alcohol she had in her home to which she said she was not sure.
The witness was asked whether the father had ever admitted to her that he had had a drinking problem in the past, to which the witness replied in the negative.
As to the medical condition course the witness completed, the witness stated that she had learnt signs to look out for and if anything lasted longer than five minutes an ambulance should be called. As to signs to look out for the witness referred to the child starting to feel ill or looking dazed. She referred to the possible need to lie the child down. She referred to the monitoring of blood sugar levels and assumed the child had a machine for that purpose; she stated that the course had not said anything about that matter. She stated she was not given any written material by the course providers.
Evidence of Ms K
The Court does not propose to set out the entirety of Ms K’s affidavit and oral evidence.
The witness’s affidavit evidence was supportive of the father as a parent.
This witness stated that she was a mutual friend of both parties. She had first met the mother playing sports and later met the father when he joined same team. The witness stated that she remained close friends with the father who remain living in City P after the mother had moved to Town R.
In her oral evidence she stated that she offered to prepare an affidavit for the proceedings.
The witness stated that she had never stayed overnight in the household of the parties and the child.
The witness stated that her affidavit evidence was significantly based (but not exclusively) on historical text messages that had passed between the mother and herself.
The witness stated that the father had not previously talked to her about an event in mid-2017 where he was found drunk by the City P police.
The mother’s evidence
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
The mother stated that she was not fully aware of the father’s alcohol issue but there was potential, and explained that he may or may not be drinking, she was not sure, and that she had had no engagement with his family.
The mother stated that she never smelt alcohol upon the father when he spent time with the child between 2019 and 2023, and nor did he appear intoxicated. The mother had permitted time between the child and the father in public places, at the father’s workplace, and at sports fields.
The mother stated that post final separation the father had not been violent to herself or the child, and nor had he yelled at them.
The mother stated that in 2019 the father spoke to her fairly regularly. There was some FaceTime contact between the child and the father which included contact between the parties.
In relation to the mother’s allegations of the father committing family violence against her in mid-2016, the mother was asked why she did not take photos of alleged bruising to her arms to which she replied that after the event she had put the blame on herself and did not want to remember it.
The mother stated that in relation to her allegations of family violence against her by the father in mid-2017 that she had not taken photos of her alleged injuries because, like all the alleged assaults against her by the father, she was very self-reflective and was apologising for them.
In relation to her allegations against the father of anal rape in early 2018, the mother stated she had not reported the incident to the police since it occurred because she wanted to stop living the nightmares.
The mother stated, in relation to her allegations that in early 2018 the father had assaulted her for about two minutes, including alleged pushing, pulling of her arms and being dragged around a room, there were no injuries that she could recall.
The mother stated, in relation to her allegations of the father smacking the child S excessively in about late 2018, that the red world marks over his arms, back, legs and buttocks had disappeared before the following day.
The mother stated that the child will be exposed to a risk of both physical and emotional harm if spending time with the father. In relation to emotional harm, the mother stated that the father would be unable to regulate the child’s emotions with her. She referred to the father’s history of not attending certain events and she surmised that if time was ordered between the child and the father he might fail to attend a visit.
The mother confirmed that the father had not threatened her with harm in relation to spending time with the child after the final separation and up until November 2024 when contact Centre supervised visits commenced.
The mother stated that the father presently does not have a genuine interest in spending time with the child. Rather, the mother stated the father wishes to control her in seeking to spend time with the child.
It was put to the mother there was no family violence in the father’s new relationship with Ms H, to which the mother replied that she did not accept that to be the case.
The mother stated that the last time that the father’s child S had seen the child was in June 2024. The mother stated that it was important for the child have a relationship with S as previously the two of them had had a relationship. The mother stated that she was unsure if it was important that the father’s new child T develop a relationship with the child because they had never met each other.
The mother stated there was the potential for the father to sexually abuse the child given the sexual violence perpetrated against her by the father.
The mother stated that the child’s medical condition could be triggered following the child being in the car for long drives. In this context she stated that if the child falls asleep in the car, and thereby gets out of her sleep routine, she cannot sleep that night. She stated it was important to be very aware of this not occurring. She stated that after a long week at school she has observed the child tending to fall asleep after 15 minutes in the car and she has to try and keep the child awake. The mother stated that if the father was spending time with the child after school on Fridays that there was a risk that the child could fall asleep if being driven to City P.
As to the father having completed medical condition course, the mother stated that from the father’s oral evidence putting the child into a recovery position was factually incorrect. She expressed her concern that the father had not engaged with the child’s paediatric neurologist, with Dr F, relating to the child’s medical condition management.
The mother confirmed the father pays child support of about $569 per month with the father having commenced paying child support in August 2019.
The mother was asked why she had changed her position (from the interim consent orders on 1 July 2024) whereby the father was to spend initially supervised time of the child (a total of 6 months) progressing to unsupervised time. The mother referred to the father having breached an undertaking to the court that he gave on about 2 July 2024 (relating, inter alia, to the father not entering or remaining in a place of residence, employment or education of the mother, and not using social media to make contact with the mother), the father had not engaged with Dr F pursuant to those orders, and the father had not placed himself on the child school portal (to enable him to receive communications from the school) in a timely fashion. She later referred also to the fact that the father had conducted his hair alcohol test 14 days late.
In relation to the father breaching the above undertaking, the mother referred to the father uploading a photo of the child on social media, and the father emailing the mother one evening at 9.30 pm and two days later at 11.30 pm.
The mother confirmed the father had not tried to abduct the child in the past.
The mother confirmed that supervised visits between the child and the father were going well and she stated that the child was aware of the father.
In relation to the restraining orders the mother seeks against the father, the mother stated that the father had walked past her home, however he had not ever entered her house after the final separation. She stated the father did not know where the mother worked.
The mother stated that she had come to the view that the father wanted to control her and did not have a genuine interest in seeing the child when the father engaged with his lawyer.
The mother stated that she does not believe that the father loves the child and she has believed this since prior to the father engaging his lawyers.
The mother was asked whether the child loves the father to which the mother replied she was unsure.
The mother was asked whether there was any benefit to the child in having a relationship with the father if it was safe to do so, to which the mother replied in the affirmative.
The mother was asked what her response would be if the child asked her, “who is my family?”. The mother stated that she would respond by stating that there are people that the child lives with and there are people that the child does not live with, with the father being in the not live with category. The mother stated that the child understands that she has two families, those that live with her and those that do not live with her. The mother stated this was an appropriate view for the child to have.
In relation to Exhibit L, a photo of the child in a dancing costume, the mother stated that she had agreed with the dance studio for the photo to be publicly accessible.
The mother was questioned in relation to the father’s partner’s inserted words above the photo of the child and the dancing costume which stated, “Our big girl being nothing short of amazing…wish we could have watched your performance! We love you so much.” The mother stated that the words, “wish we could have watched your performance” were impliedly critical of herself.
In relation to photos of the child on her own in Exhibit M, being photos of the mother had taken, the mother stated that she had asked the father not to show any of her photos on social media. When asked why the father should not have the ability to post such photos of the child on social media, the mother stated that they were not his photos.
The mother was asked whether her concerns in relation to the child spending time with the father were allayed by the contact centre supervisory reports indicating the child’s time with the father went smoothly, the father behaves appropriately, the child enjoys this time, and that the contact centre has no concerns, to which the mother responded in the negative stating that the child was being supervised.
The mother agreed that she was not trusting of the contact centre.
The mother stated that the father having had his hair test (for, inter alia, previous alcohol consumption) conducted about 14 days late may have led to the results of the test not picking up certain previous alcohol consumption.
It was put to the mother that nothing would convince her that the father would change to which the mother responded that she has not seen a change in the father’s behaviour and that yesterday in the father’s oral evidence she noted discrepancies between that evidence and his affidavit evidence.
The mother was questioned as to paragraph 57 of the Family Report relating to the mother’s concern, expressed there, that she was so fearful that the father could sexually abuse the child. The mother stated that there was the potential for the father to sexually abuse the child, and in this context the mother stated that she was sexually abused by the father. She stated that she has always believed that including when she agreed to consent interim orders on 1 July 2024.
It was put to the mother that her reasons for changing her mind in respect to the child ultimately spending unsupervised time with the father (including the father breaching his undertaking to the court made on about 2 July 2024) paled into insignificance when set against her concern that the father might sexually abuse the child, to which the mother responded that she had never been through this process before.
The mother stated that during school holidays her sister and mother assist the mother with the care of the child if the mother, for example, has to attend university. The mother stated she was unaware if the child’s school staff had done a medical condition course.
The mother stated she engages with a counsellor for victim support (the mother having allegedly experienced domestic violence trauma) and presently it is every 3 to 4 weeks.
The mother stated that her concerns in relation to the child spending time with the father were not alleviated by the father’s partner’s evidence which was supportive of the father’s position. In this context the mother stated that the father’s partner could presently be in the same adverse situation that she had been in with the father during their relationship.
It was put to the mother that nothing that anyone might say or do could get the mother to change her view about the father, to which the mother agreed. The mother stated that she could see no positive thing that the father could bring to the table regarding the child.
The mother stated that there was a photo of the father in the child’s playroom.
Evidence of Mr M
The Court does not propose to set out the entirety of Mr M’s affidavit and oral evidence.
This witness is the husband of the mother.
This witness stated that the mother and himself commenced a close relationship in late 2019 and commenced living in a de facto relationship in mid-2021. He has one child with the mother, U, born in 2023.
The witness stated that if the child refers to himself as Dad, usually the mother or himself remind the child that the father is her father.
The witness stated that in early 2020 the mother first told him that during her relationship with the father, the father had been physically abusive to her and had hit her. He stated that the mother had made further disclosures about physical violence committed by the father on the mother in subsequent months.
Evidence of Ms O
The Court does not propose to set out the entirety of Ms O’s affidavit and oral evidence.
This witness is the maternal grandmother.
The witness stated that the mother had told her shortly after the parties separated in April 2019 that the father had been violent to the mother during their relationship. The mother had reminded the witness of two previous occasions when she had observed bruising on the mother’s arm, and on one of those occasions there was also bruising on the mother’s chest. On each of those occasions the mother had told the witness that the bruises were as a result of her playing sports. The witness stated that during their conversation in late April 2019 the mother had told her that the bruising on her arms on each occasion was as a result of the father assaulting her and the bruising on her chest was as a result of the father throwing his mobile phone at her.
The witness stated that in 2020, 2021 and 2022 the mother made a number of further disclosures to her about the father’s abuse of her during the relationship.
The witness stated that she had attended with the mother on numerous occasions to support her supervision of the father’s time of the child after their separation.
The witness stated that on about early 2018 she observed the father to be asleep in the parties’ lounge room and she could smell alcohol on him. She saw that his car was parked in the street outside their unit about a car width out from the curb.
Evidence of Ms N
The Court does not propose to set out the entirety of Ms N’s affidavit and oral evidence.
This witness stated she was an old school friend of the mother.
The witness stated that in about early 2020 the mother had first disclosed to her, inter alia, that there were a number of times that the father had been physically violent to her. She stated that during 2020 there were at least 6 separate discussions that she had with the mother during which the mother made disclosures about the father having been violent to her during their relationship. She stated that between July to September 2020 to the mother made further disclosures about the father’s violence.
Family Report
The author of the Family Report dated 21 October 2024 was Mr J, Regulation 7 Family Consultant. He interviewed the family on 26 September 2024 and 17 October 2024.
The Court does not propose to set out the entirety of the Family Report.
Under the heading “Risk of Family Violence”, the Family Report writer stated:
43. [Mr Sutton] acknowledged the parents did “fight” verbally though not in the presence of others.
…
45. [Mr Sutton] questions why the mother has raised concerns about her safety in his presence, however, given that they shared a space together when she was supervising [X]’s time with him in McDonalds last year.
…
50. [Ms O] indicated that the father pressured her into sending him sexual photos which “stupidly I did”. She said that the father posted some of those photos on social media though he removed the photos when she asked him to. [Ms O] qualified this by stating she was not naked in the photos.
Under the heading “Child Safety and Wellbeing”, the Family Report writer stated:
54. [Mr Sutton] became subdued in response to the mother’s concerns there could be a risk of him sexually abusing [X]. He stated that he is “shocked” the mother raised this as a potential concern and suggested that she has made this statement in response to him instigating Court proceedings.

Under the heading “Mental Health”, the Family Report writer stated:
65.[Ms O] indicated that she engages with a counsellor each fortnight though she has not been diagnosed with any mental health issues.
In his evaluation, the Family Report writer stated, inter alia, that:
102.No ADVOs have existed between parents and there is limited communication between them. While the absence of any formal reports does not preclude family violence has occurred, it appears there is limited evidence available that confirms such a dynamic. The allegations made if accepted rather than suggestive of a high level of risk indicate a pattern of disrespectful behaviour designed to humiliate and control the mother or coerce the mother into preferred behaviours and sexual acts. Alternatively, it may be as implied by the father, relationship dysfunction within the parameters of what may be considered normal and included misunderstandings about agreement and consent in both financial and sexual matters.
103.The post separation actions of the father, [Ms H] and the paternal grandmother in attempting to contact the mother, do not necessarily suggest a coercive intent, with none of the contact reported to include pressure or threats of any nature. [Ms O]’s actions in unilaterally relocating with [X] and withholding her are not consistent with [Ms O] being controlled by [Mr Sutton] or experiencing ongoing fear of repercussions in relation to her behaviour.
…
107.The mother expressed concerns that there is a risk of the father sexually abusing [X] if time between them is Ordered. This appears to have been based on information she claims to have received that the father may have been sexually abused as a child, and the increased likelihood statistically of children who have been sexually abused perpetrating sexual abuse as an adult. The father has not been alleged to have perpetrated child sexual abuse and there is no collateral information available to support the mother’s concerns. Given the tenuous nature of these allegations it appears this is not a significant factor that requires consideration when determining appropriate time arrangements for [X] with her father.
108.The mother drew parallels between [Ms H] claiming to have four children on social media, including [X], to what mothers experienced during the “Stolen Generation”. This appears to be a disproportionate response given that the father did not articulate any concerns about the mother’s parenting and is not proposing a change of residence. In comparison, the mother is proposing that [X] has no contact with the father, and [X] refers to the mother’s partner [Mr M] as “dad”. It appears [Ms O] does not place significant value on [X]’s relationship with [Mr Sutton] and may be exaggerating the threat posed by contact with him and paternal family members.
112.The geographic distance between parents, subsequent to the mother relocating with [X], does preclude the father from being able to spend time with her on a more frequent basis. The father lives in [City P] and there are three other children he cares for. Whilst the mother indicated a belief the father will “give up” on [X] he has initiated mediation and Court proceedings seeking substantial time with her. During the mother’s interview she lamented that the father has not sent [X] a birthday gift though later described him offering to purchase her a gift as “coercive”. When [X] was observed interacting with the father, she smiled when she was united with him, delighted in his company and smiled following their time together. This seemed incongruent with her negative/absolute views of his care.
115.If [X] has a sense of loyalty to her mother, has some awareness of her views and/or is perceptive enough to recognise her mother’s emotions, she may experience a loyalty conflict. [X]’s lack of enthusiasm for spend time arrangements with her father could be a means of managing her mother’s emotional state, rather than issues stemming from her experience of the father’s care. The mother can acknowledge the possibility of [X] sensing her anxiety about communication with the father and reported that she is proactively engaging in counselling to manage this issue.
116. The mother’s proposal for [X] to have no contact with her father may not have any immediate impact on [X] and could reduce the possibility of her being exposed to conflict and/or family violence between parents. If the mother has experienced a pervasive pattern of abuse, litigation and the need to support spend time arrangements with someone she believes is unsafe could have a detrimental impact on her psychological wellbeing and subsequent parenting capacity. As it stands, [X] feels safe with her mother and is supported to understand her culture.
117. However, this Family Consultant does not consider the issues raised by the mother in relation to [X]’s safety to be immediate risk issues or significant enough ongoing risk issues which would warrant [X] spending no time with her father. If [X] is unable to spend time with her father, she would be precluded from accessing any of the unique resources he can provide her. She would also be precluded from spending substantial time with her paternal half-siblings and extended family. Based on observations of their interactions, the father does have capacity to be an attuned parent and [X] appeared to enjoy their time together. The mother may not dispute that the father can engage [X] though she may question whether the father can be an attuned parent consistently and reliably sustain his involvement in [X]’s life.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of that evidence.
The ICL asked the Family Report writer whether he would change any of his recommendations in light of material produced after the preparation of the family report which included, inter alia, contact centre reports of the visits between the father and child.
The Family Report writer stated that given there has been a period of supervised contact and no substantive concerns were raised about the child or the father’s care of her, then he would be willing to endorse a progression to unsupervised time. He stated that if the Court makes the determination that there was no immediate risk to X’s safety, consistent with his assessment, he would endorse a progression towards overnight time.
The ICL asked the Family Report writer to assume that the Court did not find that there was an unacceptable risk of harm to the child in spending time with the father, and asked him whether the mother’s negative attitudes towards the father would lead him to recommend leaning towards more time between the child and the father or less time or otherwise, and this evidence was given:
WITNESS:It – I mean, regardless of how much time, specifically, she is spending with her father, it won’t – it won’t necessarily remove any inner conflict that [X] might experience if she has some awareness of – of the mother’s views or her position. She could – she could carry with her regardless of the amount of time she spends with her father. In terms of the mother’s own fears and anxiety regarding [X]’s time with her father, it seems probable that she will be less anxious if [X] is spending less time with her father, and there’s a reduced risk of – of what she perceives to be putting [X] in danger, then she may be more supportive. Perhaps with a gradual approach to progressing [X]’s time with – with the father, the mother can build confidence over time, supporting that relationship, if – if she can see that [X] is transitioning or – or that she does speak positively about her father’s care. If that builds the mother’s confidence over time, then perhaps a more cautious approach would be better, though that’s not necessarily a result of what the father has – has done with [X]. It’s more about improving or increasing the mother’s comfort levels around progressing the [X]’s time with the father.
The Family Report writer stated that, subject to the child being safe spending time with the father, he would endorse a proposal in six months for the child to start overnight time with the father. He supported the ICL’s proposals for school holiday time.
The Family Report writer was asked to consider possible longer term impacts upon the child of ceasing to spend any time with the father and this evidence was given:
WITNESS: Yes. It may be that she is unnecessarily deprived of having a relationship with her father, accessing any resources that he could provide her physically, psychologically. She may also, given the mother’s seeming absolute views, be precluded from accessing any paternal family members. As I understand, she may not be spending time with them, or communicating with them, and so she’s also precluded from those relationships and her sibling relationships. And in the absence of any immediate risk to her, that – you know, there’s not any significant reason that she should be precluded from accessing those. There could be enormous benefit for her psychologically to have a relationship with her father and paternal family members. And depending on how that’s communicating – communicated to her, she could experience some grief and loss over the absence of that relationship, or unnecessarily perceive that she has been rejected by her father or paternal family members, which could have a damaging impact on her psychologically.
The Family Report writer was asked about the mother’s alternative proposal for the child to spend supervised time with the father and this evidence was given:
MR LADOPOULOS: All right. If I can turn now to the mother’s alternative proposal, which is that there be professional supervision once a month. That sort of arrangement on an indefinite basis must be limiting, in terms of how the relationship between a child and a parent can evolve and grow. Isn’t that the case?
WITNESS:Yes. There’s an element of artificiality in those settings for a child of that age. With some difficulty sustaining her attention, she is not able to engage in spontaneous activities with her father or activities that are of particular interest to her. She can’t spend extended blocks of time with him. She can’t spend substantial time with her half-siblings or family members. She may grow tired of attending that environment, if the activity options are limited, and start to resist spending time in that environment because there are limits on what she can do and what the father can do with her. As I indicated earlier, she would then be precluded from involving him in her education, activities of significance to her, her sleep-wake routines. So that hampers her capacity to add more depth to her relationship with her father.
When the Family Report writer was told about the incident at the V Hotel in late 2016, the following evidence was given:
MR SCHRODER:      The common ground is they had been to the [V Hotel]. The mother, for some reason or other, has into the car of the father, locked herself in. The father has gone to the car and kicked the car door, knowing that the mother is inside, and she is terrified by it – frightened by it. And – right. That is a classic admission, is it not, of violent behaviour?
WITNESS:Yes.
MR SCHRODER:       And the father didn’t tell you about that behaviour, did he?
WITNESS:I can’t recall him saying that, no.
MR SCHRODER:       And knowing about that violent behaviour, does that cause you to consider that that may well be one reason why the mother is so concerned about [X] being in the care of the father?
WITNESS:Yes. I understand she is concerned. I understand that – yes. Sorry.
MR SCHRODER:       And does that change any of your views about the recommendation you made about the father’s time?
WITNESS:No, not that incident in isolation. When I am completing an assessment, I need to identify if there is a pervasive pattern of abuse during the relationship and something that has continued following the separation. It doesn’t mean that family violence hasn’t occurred, and it hasn’t had some influence over a parent’s willingness to support a relationship with another parent that has perpetrated violence, though, you know, if we’re talking about incidents in isolation it wouldn’t change my recommendation necessarily.
The Court at this point should address a submission of the mother that the family report writer’s approach in addressing the mother’s contended safety issues in relation to the child was flawed. The Court considers that viewing the Family Report writer’s evidence holistically his approach in this regard was not flawed. The Family Report writer acknowledged that he had conducted a risk assessment in relation to the child, which was unsurprising because a family assessment conducted by a Family Report writer should normally include an assessment of any risk factors identified in a matter. The Family Report writer in this case acknowledged that it was the Court which ultimately determined any relevant risks confronting a child including whether any such risks were unacceptable or not. The Family Report writer had at one point referred to his need to assess, in relation to his risk assessment evaluation, inter alia, whether any family violence risk factors amounted to “an immediate risk”. Again, viewing his evidence holistically, the Court would not construe his evidence as indicating that the only risk of harm posed to a child that was relevant to a risk assessment was one that posed, in a temporal sense, “immediately” on the child coming into a parent’s care. It is apparent that a relevant risk of harm posed to a child, for example, may be more likely to occur at night time or expected to occur when the child reaches a certain age; these examples do not necessarily suggest “an immediate risk”.
The Court has, below, conducted a risk assessment as required under s 60CC(2) of the Act based on the evidence before the Court.
The Court accepts the evidence of the Family Report writer, subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act which are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The Court has to consider each statutory matter in section 60CC, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637 at [49]; Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]). Accordingly, the Court will discuss each factor to the extent necessary, having regard to all considerations.
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
These considerations will be considered together.
The parties’ relationship spanned the period from about December 2015 to final separation in about April 2019.
The mother alleges family violence against the father during their relationship, to which the father makes significant denials. She alleges instances of adverse behaviour committed by him. She contends that the father lacks parenting capacity also by reason of certain delays by the father in relation to the child, including in complying with Court orders relating to attending upon certain of the child’s treating health professionals and completing a medical condition management course.
The Court has regard to all the evidence before the Court in relation to its determination of the mother’s allegations against the father. The Court observes that in relation to the mother’s allegations of family violence she has made very serious allegations of rape and assault.
The Court finds that the father perpetrated only the following acts of family violence against the mother:
(a)he perpetrated the family violence against the mother in late 2016 as alleged by the mother in paragraph 49 of her trial affidavit; whilst intoxicated, the father was verbally aggressive and abusive to the mother, spat at her, and whilst the mother was inside his car he kicked the door about 4 times;
(b)he was verbally violent to the mother on other occasions during their relationship, however the Court is unable to determine the precise dates this occurred;
(c)he took a photograph of the inside of the mother’s house taken from her backyard and sent it to the mother via text message (the text message contained a statement that the mother was living in the house).
In relation to the above findings the Court observes that in cross-examination, the father stated:
(a)he had been verbally violent to the mother in the past,
(b)he had behaved recklessly after having consumed alcohol,
(c)he did not know if alcohol and violence go together with him,
(d)he could not recall verbally abusing or spitting on the mother in late 2016, (with the Court observing that the father did not expressly deny these matters in his trial affidavit),
(e)he was frustrated in relation to the situation involving the mother in late 2016 and he had kicked his car door, in which the mother had locked herself in,
(f)as at mid-2017 he had a problem with alcohol.
In relation to the above findings the Court has also taken into account:
(a)The mother resumed her relationship with the father in June 2017 and November 2018 after short separations. The Court accepts the evidence of Ms K that in about mid-2018 the mother had told Ms K that she was staying with the father and may have slept with him at about that time. The Court accepts the evidence of Ms K that on about late 2018 the mother had told her that she wanted to have sex with the father. The Court accepts the evidence of Ms K that on about mid-2019 the mother texted her to inform her that the parties had broken up as the father had been cheating on the mother.
(b)After final separation the mother facilitated time between the child and the father, supervised by her, on about 43 occasions between 2019 and 10 June 2023; the mother had told the Family Report writer that she had begged the father to spend time with the child for the first two years after separation so that the child could maintain a relationship with her stepbrother S;
(c)The mother consented to interim parenting orders on 1 July 2024, being then legally represented at court by her barrister (which barrister appeared for the mother at the final hearing), and which orders provided, inter alia, that the child spend a total of 6 months of supervised time with the father and progressing to unsupervised time during the daytime after that 6 month period expired;
(d)The mother sought to have the father attend certain medical appointments for the child in July 2020;
(e)The mother’s communications of alleged family violence by the father to third parties were not made contemporaneously with the commission of the alleged violence and the evidence of those communications lacks significant particularity;
(f)The mother has historically made no application for an apprehensive domestic violence order against the father;
(g)The father’s relevant denials.

As to the mother’s allegations of adverse behaviour by the father the Court finds that:
(a)The father, in about early 2017, posted a sexually explicit photograph (the mother was not depicted naked but in a sexually provocative pose, with a sexually explicit caption) of the mother (sent to him earlier by the mother) on Facebook without her permission. He had tagged a number of people in the post including her niece. He had removed it from Facebook after the mother requested that he do so. It is likely that the father posted that material to, at least, humiliate the mother.
(b)He parked his car on about early 2018 outside the parties’ then residence about a car width out from the kerb at a time when he was likely affected by alcohol.
The Court now makes certain findings in relation to its assessment of risk to the child in spending time with the father prospectively.
The Court accepts the evidence of the father’s new partner that the father has not perpetrated any violence or acted aggressively towards his new partner or their family, with the Court observing that the father’s relationship with his new partner commenced in about late 2020. The Court accepts her positive evidence in relation to the father as a parent. The Court accepts her evidence in relation to the father genuinely wishing to spend time with the child.
The Court accepts the evidence of Ms K that since about early 2021 when she met the father’s new partner until the present time she has witnessed the father and her new partner collaboratively raise three beautiful children, and that she has witnessed S and W form a strong bond with each other and with their respective stepparents. The Court accepts Ms K’s positive evidence in relation to the father as a parent.
The Court accepts the evidence of the father’s new partner that in the almost 5 years that the father and herself had been together, she has never experienced or witnessed the father abuse drugs or alcohol, or been exposed to violence or aggression at the instance of the father. The Court accepts the father’s evidence relating to his consumption of alcohol, including his evidence relating to his own rehabilitation in this regard.
The father has not abused or been violent to the child. The Court is not persuaded, on the balance of probabilities, that the father physically chastised S with excessive force as alleged by the mother.
The father’s supervised time with the child at the contact centre since about November 2024 to date has been positive. Inter alia, he has been child focused, and has appropriately directed the child in play. He has not attended such supervised time adversely affected by alcohol. He has not acted violently. He has participated in such supervised time consistently.
The father has not come to the attention of the police nor welfare authorities since separation to date regarding his care of any children.
The Court finds that the mother’s concerns relating to what she contends were the father’s breaches of an undertaking given to the court on about 2 July 2024 and breaches of Orders made on 1 July 2024 are disproportionate to the nature of the father’s actions in this context. For example, at 9.36 pm on 14 August 2020 the father sent the mother an email stating, “Hi, Following up with you regarding X’s test in July 2024 and if there has been an outcome/what are the next steps? Regards”. The mother had stated that in response to this email, because she could not recall a single occasion of the father previously following up after a medical appointment for the child, she was distressed by him doing so on this occasion, late at night, and because of the father’s past behaviour, she was of the view that that was the reaction that he intended.
The Court assesses the mother’s concerns related to the Family Report writer and set out at paragraphs 35 and 36 in the Family Report as unreasonably founded.
The Court accepts the evidence of the father and his new partner in relation to their respective positive completion of a medical condition management course and the Court accepts their evidence in relation to what they each learnt from such course.
The Court does not accept that the father has previously sought to coercively control the mother as contended by her. For example, the Court finds that there was no significant evidence relating to the father ever seeking to coerce the mother in relation to spending time with the child.
The Court is not critical of the father’s partner in posting a publicly available photo of the child (from her dance studio’s website) on Facebook, albeit ideally she could have considered seeking the mother’s permission.
The Court finds that it is unlikely that the child will experience any adverse effects upon her usual sleep routine should she spend time with the father pursuant to the ICL’s proposed final parenting orders, particularly taking into account the graduated nature of such orders.
The Court observes that the father has been paying regular child support.
Having regard to the Court’s above discussions and findings, the Court finds that there will be no unacceptable risk of harm posed to the child (or mother) in spending time with the father pursuant to the ICL’s proposed final parenting orders. Specifically, there will be no unacceptable risk of harm posed to the child, whether physically or psychologically, in spending such time with the father. There will be no unacceptable risk of harm posed to the child in spending such time with the father through neglect; the Court assesses the father’s parenting capacity will be adequate within the context of spending time with the child pursuant to the ICL’s proposed final parenting orders. The Court finds that the child will not be subject to any risk of sexual abuse in spending time with the father.
In this context, the Court has taken into account, in particular, the historical nature of such violence, the father’s own admissions in his oral evidence, the father not perpetrating further violence or other significant adverse behaviour against the mother to date, the father not having ever been violent to the child, the father’s rehabilitation relating to alcohol consumption, the positive evidence relating to the father’s new relationship and parenting of other children, and the father’s positive visitations with the child post-separation.
It follows from the above findings and assessments that the mother’s proposed orders that the spend no time with the father (or in the alternative that the child spend supervised time with the father) will not be orders required to promote the safety of the child.
The Court has considered whether the mother might experience any significant anxiety in coping with any time the child might spend with the father pursuant to orders of the Court. In this regard, the Court takes into account the Court’s above discussions and findings. The Court takes into account the lack of any health professional evidence relating to the mother’s anxiety. The Court takes into account the above evidence relating to the mother seeking to engage the father in spending time with the child post-separation, including the mother herself being present on many occasions when the child spent time with the father post separation. The Court takes into account the gradual progression of the child’s time with the father pursuant to the ICL’s proposed final parenting orders which should positively assist the mother in becoming accustomed to and facilitating such orders. The Court assesses that is unlikely that the mother will experience any adverse effect upon her parenting capacity for the child should the child spend time with the father pursuant to the ICL’s proposed final parenting orders.
The evidence of the Family Report writer is consistent with the above findings and assessments.
(2)(b) any views expressed by the child;
The child is too young to express a relevant view.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The Court refers to the evidence of the Family Report writer relating to such needs of the child.
The child suffers from a medical condition and ADHD and she has appropriate treating health professionals for these conditions.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The mother has such capacities, however her concerns relating to the father’s parenting capacities for the child are disproportionate having regard to the Court’s above findings under the s 60CC safety consideration.
The father probably has such capacities, having regard to the Court’s above findings under the s 60CC safety consideration, whilst acknowledging that post separation he did delay in complying with certain orders of the Court and did delay otherwise attending in a timely fashion to some matters concerning the child.
The above assessments are consistent with the evidence of the Family Report writer.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The child will benefit from the continuance of her meaningful relationship with the mother.
The child will benefit from the maintenance and development of her meaningful relationship with the father. The child will benefit from the development of meaningful relationships with members of the paternal extended family including her stepbrothers and sisters. The ICL’s proposed final parenting orders will facilitate the child experiencing such benefit.
The above assessments are consistent with the evidence of the Family Report writer.
(2)(f) anything else that is relevant to the particular circumstances of the child.
The father stated that he would have no difficulty if the Court was to make a restraining order preventing him from consuming alcohol 48 hours prior to or during any time spent with the child. Again, the Court finds that the father has positively rehabilitated himself relating to past alcohol consumption.
(3)(a) the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture
The child has Aboriginal heritage. The parties are cognisant of the importance of maintaining the child’s connections to her Aboriginal heritage and culture.
Parental responsibility
It is common ground, in terms of the parties’ proposed orders for parental responsibility that the mother should have sole decision-making responsibility for major long-term issues relating to the care and welfare of the child. It will be in the best interests of the child to make such an order.
The ICL sought an order for costs. Having regard to the mother’s submissions relating to her share of the ICL’s cost, it will not be just that she be ordered to pay a share of those costs. In submissions, the father agreed to pay his half share of the ICL’s costs, $6,954, within three months and it will be just to make such an order.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following final parenting orders:
1.The mother shall have sole decision-making responsibility for major long-term issues relating to care and welfare of X born in 2018 (“the child”).
2.The mother shall:
(a)notify the father of any proposed decision about a major long-term care issue in relation to the child and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b)take into consideration any views expressed by the father about the proposed decision; and
(c)notify the father of her final decision, such notification to be given in writing within 14 days of the final decision being made.
Live with
3.The child shall live with the mother.
Spend time with
4.Unless otherwise agreed between the mother and the father in writing, the child shall spend time with the father as follows:
(a)commencing on the second Sunday following the date of these Orders, for a period of three calendar months, each alternate Sunday from 10:00am until 1:00pm;
(b)thereafter, for a further period of three calendar months, each alternate Sunday from 10:00am until 4:00pm;
(c)changeover on each occasion during the above six-month period shall occur adjacent to the entrance to B Venue and the time shall be spent at a park, play centre or shopping centre nominated by the father in the Suburb D area.
(d)thereafter, until the end of Term 1 in 2026, each alternate Sunday from 10:00am until 4:00pm;
(e)commencing on the first Saturday following the last school day of Term 1 in 2026, each alternate weekend from 10:00 am on Saturday until 4:00 pm on Sunday;
(f)commencing on the first Friday following the last school day of Term 4 in 2026 and until the commencement of Term 1 in 2027 school, each alternate weekend from 10:00 am on Friday until 4:00 pm on Sunday;
(g)changeover for the times provided for in subparagraphs (d), (e) and (f) above shall occur at C Service Station at Town E;
(h)from the commencement of the 2027 school year, during school Terms, the child shall spend time with the father each alternate weekend from after school Friday (or 3:00pm if the Friday is not a school day) until 4:00 pm on Sunday;
School holiday periods
(i)during school the school holiday periods at the end of Terms 1, 2 and 3 in 2027, the child shall spend time with the father from 10:00 am on the first Saturday of the school holiday period until 4:00 pm on the following Wednesday;
(j)during school the school holiday period at the end of Term 4 in 2027, the child shall spend time with the father:
(i)from 10:00 am on 26 December 2027 until 4:00pm on 30 December 2027;
(ii)from 10:00 am on 20 January 2028 until 4:00pm on 25 January 2028;
(k)from the commencement of the 2028 school year:
(i)during school the school holiday periods at the end of Terms 1, 2 and 3 each year, the child shall spend time with the father from 10:00 am on the first Saturday of the school holiday period until 4:00 pm on the following Saturday; and
(ii)during school the school holiday periods at the end of Term 4 each year, the child shall spend time with the father as follows:
A.in even numbered years, from 4:00 pm on 6 January until 4:00 pm on 25 January; and
B.in odd numbered years, from 4:00 pm on 24 December until 4:00 pm on 6 January;
Father’s Days
(l)notwithstanding subparagraphs (a) to (k) above, if Father’s Day falls on a weekend that the child is not already spending time with the father, the child shall spend time with the father on the Father’s Day weekend as follows:
(i)in 2025, from 10:00 am until 4:00 pm on Father’s Day;
(ii)in 2026 and thereafter, from 4:00 pm on the Saturday until 4:00 pm on Father’s Day;
Mother’s Days
(m)notwithstanding subparagraphs (a) to (l) above, if Mother’s Day fall on a weekend that the child is to be spending time with the father, the child’s time with the father on that weekend will be suspended from 4:00 pm on the Saturday until 4:00 pm on Mother’s Day and the child shall be returned to the mother’s care for those times;
(n)changeover for the times provided for in subparagraphs (j), (k), (l) and (m) above shall occur:
(i)at the child’s school if it is a school day; and
(ii)at C Service Station at Town E if it is not a school day;
Health
5.The mother shall:
(a)inform the father in writing as soon as practicable of:
(i)any specialist medical appointments including appointments with any orthodontist, periodontist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to the child;
(ii)the reason for such appointment having been made; and
(iii)the name and contact details of the specialist medical consultant with whom the appointment has been made;
(b)ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the mother’s receipt of the report; and
(c)ensure that the father is notified as practicable if:
(i)the child is admitted to hospital, together with the details of the hospital and the reason for the admission;
(ii)the child is involved in a medical emergency, together with the nature of the emergency and current location of the child;
(iii)the child will be required to take medication when she spends time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the child is to spend with the father.
6.The father shall ensure that the mother is notified as practicable if, while in his care:
(a)the child is admitted to hospital, together with the details of the hospital and the reason for the admission;
(b)the child is involved in a medical emergency, together with the nature of the emergency and current location of the child; and
(c)the child will be required to take medication when she returns to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following child’s return to the mother’s care.
7.THESE ORDERS AUTHORISE the child’s specialist medical consultant(s) to discuss the child’s medical conditions with both the mother and the father, separately or, if the mother and the father so choose, together.
Education
8.THESE ORDERS AUTHORISE any school which the child is attending from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother or the father in relation to the child.
9.Both the mother and the father are permitted to order and obtain school photos of the child, each at their own expense.
10.Both the mother and the father are permitted to attend:
(a)any school event relating to the child to which parents are ordinarily invited however they are to make separate appointments for parent/teacher interviews; and
(b)any of the child’s extracurricular activities to which parents are ordinarily invited.
Contact details
11.The mother and the father shall notify each other of any change to their email address and/or telephone contact numbers, such notification to be made in writing and within three (3) days of such change.
12.The mother and the father shall notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
Communication between the parents
13.Unless otherwise agreed in writing, the mother and the father shall communicate about matters relating to the care and welfare of the child using the following means:
(a)In cases of emergency, by telephone call or SMS text message;
(b)In all other cases, by use of the “Our Family Wizard” app.
14.Within 3 days of the date of these orders, the mother and the father shall do all things necessary to establish a subscription with the “Our Family Wizard” service and shall renew and maintain such subscription at all times.
Restraints and injunctions
15.The mother and the father shall:
(a)be restrained from:
(i)discussing these proceedings in the hearing of or presence of the child;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;
(b)take all reasonable steps to prevent any other person:
(i)discussing these proceedings in the hearing of or presence of the child;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.
16.The father is hereby restrained from consuming alcohol 48 hours prior to or during any time spent with the child.
17.The father shall:
(a)contact the rooms of Dr F and Dr G within 7 days of the date of these Orders and make appointments to attend upon each of them, at his expense and at the earliest available appointment time and for a second occasion in the first 3 months of 2026, for the purposes of further acquainting himself in relation to the medical needs of the child;
(b)follow all reasonable directions from Dr F and Dr G in relation to attending to those needs;
(c)notify the mother of:
(i)the date of his appointment with each doctor; and
(ii)the actual date of his attendance upon each of the doctors,
such notification to be in writing within 7 days of the appointments having been made and within 7 days of his attendance for the appointments.
18.The father shall pay the sum of $6,954 within three months in respect to his share of the ICL’s legal costs.
AND THE COURT NOTES THAT:
A.A requirement for notice to be given in writing shall be satisfied by notice given using the Our Family Wizard app.

I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 7 May 2025

File number(s):	CAC 80 of 2024
Judgment of:	JUDGE NEWBRUN
Date of judgment:	7 May 2025
Catchwords:	FAMILY LAW – PARENTING – Best interests of child – orders made.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Banks & Banks (2015) FLC 93-637 Jollie & Dysart [2014] FamCAFC 149 Tibb v Sheean (2018) 58 Fam LR 351
Division:	Division 2 Family Law
Number of paragraphs:	160
Date of hearing:	1-3 April 2025
Place:	Parramatta
Counsel for the Applicant:	Mr Gabrial
Solicitor for the Applicant:	Mannion Lawyers
Counsel for the Respondent:	Mr Schroder
Solicitor for the Respondent:	Mark Brown & Associates
Counsel for the Independent Children's Lawyer:	Mr Ladopoulos
Solicitor for the Independent Children's Lawyer:	Chidiac Legal Pty Ltd

CAC 80 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR SUTTON Applicant
AND:	MS BARCLAY Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	7 MAY 2025